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§3. International legal problems of differentiation of acts "human trafic" and «illegal circulation of human bodies»

The criminality as the social negative public phenomenon accompanies mankind throughout all its history. The concrete person, any society and all world community as a whole sustain huge losses from crimes.

The global problem of the XXI-st century causing growing anxiety of the world community, the human trafic is. The human trafic concerns the crimes encroaching on advantage and freedom of the human person. In this case it is damnified to the inalienable laws of persons inherent in it owing to the fact of the existence (individual rights) and mentioning personal liberty of the person [136].

According to the World Report on a human trafic of 2016 of Management of the United Nations Organization on drugs and criminality (further - UNP the United Nations) during the period since 2012 on 2014 in 106 countries and territories it was revealed 63251 victim of a human trafic. According to the given Report, women and girls constitute 71 percent of victims of a human trafic [137]. By estimations of experts of the United Nations for today the quantity of victims of a modern slave-trade has exceeded 20 million persons [138]. Young women and girls are imported into the countries of Europe, Asia and the Near East, to Africa, Canada, America and other states. The extensive geography of the sending parties of a human trafic visually shows scales of the criminality connected with this kind of business.

The statistical data cited above testify that such kind of a crime as the human trafic, represents threat not only for separately taken states, but also for all world community.

Each country is mentioned by this problem. Especially rasprostranenno this phenomenon in the countries with insufficiently developed economy, and in the countries where the terrorism where operations where there is a war are led prospers.

Struggle against a human trafic has the big history and at different stages of development of the states it was shown differently. The legislation in sphere of counteraction is presented a human trafic by a number of the international legal documents directed on association of efforts of all states in struggle against the given crime, and also slavery and its displays.

At the international level the declaration of the Viennese congress of 1815 had been forbade for the first time trade in black slaves from Africa. Later on

The Aahensky congress of 1818 trade in Negroes was not only is forbidden, but also is recognised by criminal. But positions of the given declarations and did not manage to be put into practice.

The most significant international legal document of the post-war period of the XX-th century is the General Declaration of human rights from 10.12.1948 in which item 4 it was especially underlined, that «nobody should contain in slavery or serfdom; the slavery and a slave-trade are forbidden in all of them

Kinds »[139].

On the European continent the important international legal certificate in sphere of maintenance of the rights and freedom of the person is the Convention on protection of human rights and fundamental freedoms from 04.11.1950 In the given Convention two articles directed on protection of the person from a human trafic contain. It is item 4 «slavery and forced labour Prohibition» and item 5 «the Right to freedom and inviolability of person» [140].

Now, despite a considerable quantity of the accepted international documents in the field of struggle against a slave-trade, unfortunately, the given phenomena still proceed.

From the middle of 50th of the XX-th century the medical science in the field of transplantology which allows to rescue a life starts to develop fast rates and to keep health of seriously ill patients of people. However people frequently for years are forced to wait for the turn on transplantation, living in hope on rescue. Shortage of bodies for satisfaction of demand for transplantation causes the corresponding offer of intermediaries which choose and hire donors among vulnerable groups of the population. Undoubtedly, that the satisfaction of similar criminal purposes bears the huge social danger, especially if it is interfaced to fulfilment of such crime, as a human trafic.

In March, 2017 the Secretary general of United Nations Organization Antoniu Guterrish, acting at UN Security Council session, has underlined, that in «the black markets» trade not only people, but also human bodies [141] prospers.

The wide circulation suffices recently trade in minors has received. In the World report on a human trafic for 2016, published UNP the United Nations, are said that children constitute 28 percent of the revealed victims of a human trafic all over the world. While in Central America, Caribbean basin and Subsaharsky Africa children constitute 62 - 64 percent of victims [142].

Minors sell to Germany, Belgium, Denmark, the Netherlands, Spain, Greece, France, in the countries of the Near East, Africa, Asia, Israel, Turkey, the United Arab Emirates, Japan, Thailand, Australia, the USA and Canada. Sale of minors is carried out with a view of employment by them begging, children's prostitution, and also as donors for reception of bodies. In the Russian Federation acquisition of children for the purpose of the subsequent extraction at them bodies probably only in case of sale of children to foreign subjects. It is caused by that withdrawal of bodies is carried out in the presence of the corresponding equipment, specially trained medical personnel and the prepared premise. Carrying out of preliminary medical analyses and tests is necessary also. To carry out such actions within Russia without information leakage extremely difficult.

By some estimations the Russian child abroad costs 10000 US dollars and above [143].

In Ryazan in 2000 grandmother Nina Tkachyova for the purpose of reception of the maximum benefit tried to sell own grandson for the purpose of extraction of its bodies further. Employees of service of criminal militia of the Department of Internal Affairs on the Ryazan area have acted as buyers. The woman has estimated a life of the grandson in $90 thousand Having cashed, it has surrendered all documents of the boy, including a medical card of the child. Criminal case has been initiated, and the court has sentenced Tkachyovu to 4 years to 6 months of imprisonment [144]. Law enforcement bodies of Finland and Spain in 2005 investigated case of the citizen from the Russian Federation, engaged in export of Russian children for the purpose of their sale on bodies. Charge has not been shown it, as there were no proofs [145].

Trade in children quite often occurs with a view of adoption. With 1993 for 2001 according to FSB of the Russian Federation the Italian of the Russian origin Hope Fratti has taken out abroad from the Perm area about 300 children-orphans, and from the Volgograd area - 558. This business has caused the big resonance in a society. Employees of FSB of the Russian Federation assumed, that children used in private Italian clinics for change of bodies [146].

At the same time, the young man of 16-18 years after corresponding ideological and narcological preparation can use in hot points for participation in operations and acts of terrorism.

The resolution of the United Nations of 44/25 HECTARES from 20.11.1989 had been accepted the Convention on the rights of the child, obliging the states to accept all «necessary measures for prevention of kidnapping, trade in children or their contraband in any purposes and in any form» (item 35 [147]).

Developing positions of the given Convention, of 54/263 HECTARES from 25.05.2000 have been accepted by the Resolution of the United Nations the Optional protocol to the Convention on the rights of the child, concerning trade in children, children's prostitution and a children's pornography (further - the Optional protocol), containing definition of trade by children which is understood «as any certificate or the transaction by means of which the child is transferred by any person or any group of persons to other person

Or a group of persons for compensation or any other compensation »(the item"and"item 2) [148].

Unlike the Convention on the rights of the child from 20.11.1989 where are directly mentioned only sexual and labour operation, and the human trafic for the purpose of extraction of bodies can be included under «other forms of operation» (item 36 [149]), the Optional protocol in item 3 point 1 particularly orders to the state-participants that they without fail «have covered the criminal law» such act as «transfer of bodies of the child for compensation» which it should be considered «in a context of trade by children» [150].

The given Optional protocol is ratified by the Russian Federation on May, 7th, 2013

Considering inconsistency of the states in sphere of counteraction to a human trafic, absence of coordination between them on prevention of this activity, and also absence of the criminal liability for a human trafic at national level, on November, 15th, 2000 the Resolution of the United Nations of 55/25 HECTARES had been accepted the Convention against the transnational organised crime [151] and the Report supplementing it on the prevention and human trafic suppression, especially by women and children, and punishment for it [152] (further - the Palermsky report). The given international legal certificates at the international level have defined new duties of the states in sphere of counteraction of a human trafic. On March, 24th, 2004 the Russian Federation ratified the Convention of the United Nations against the transnational organised crime of 2000

It is necessary to notice, that the number of parties to the convention of the United Nations against the transnational organised crime of 2000 as of 08.11.2016 constituted 187 states [153], including the poorest countries of the world that allows to speak about prospects of the further expansion of application of the Convention.

G lavnym the international legal document in human trafic counteraction is the Palermsky report which at universal level makes for the first time definition of concepts "human trafic" and "operation". According to the subparagraph () articles 3 of this Palermsky report, the human trafic «means recruitment carried out with a view of operation, transportation, transfer, concealment or reception of people by threat by force either its applications, or other forms of compulsion, abduction, swindle, a deceit, abuse of authority or vulnerability of position, or by payoff, in the form of payments or benefits, for reception of the consent of the person supervising other person. Operation includes, at least, operation of prostitution of other persons or other forms of sexual operation, forced labour or services, slavery or the customs similar to slavery, serfdom or extraction of bodies» [154].

Inclusion of words «extraction of bodies» in the definition of operation containing in the Palermsky report became the important measure in sphere of counteraction to illegal circulation of human bodies.

For the first time the definition of a human trafic containing in the item and item 3 of the Palermsky report adjusted at the international level, has received further a wide circulation in various certificates of international law and the national legislation of the states. Having ratified the given document, the majority of the countries have entered the criminal liability for a human trafic. Among them: Sweden, Armenia, Spain, Belarus, Australia, Tajikistan, the Peoples Republic of China,

Hungary, Kazakhstan, Kirghizia, Colombia, Costa Rica, Cuba, Lithuania, Moldova, the Netherlands, Paraguay, Poland, Romania, Montenegro, El Salvador, Slovakia, Uzbekistan, Ukraine, Russia, etc.

According to item 5 of the Palermsky report, the human trafic, including with a view of extraction of bodies, is penal. The Palermsky report concerns not only criminal aspects, but has wider scope including measures of preventive maintenance and protection, and also position about cooperation.

In 2015 of HECTARES of the United Nations the resolution 70/179 «Improvement of coordination of efforts on struggle against a human trafic» [155] which urges member states to continue the efforts on introduction of the criminal liability for a human trafic in its forms, including withdrawal of bodies has been accepted.

Considering regional certificates, it is necessary to notice, that the effective tool in struggle against a human trafic in its forms, including for the purpose of extraction of human bodies, is the Convention of the Council of Europe on counteraction to a human trafic from 16.05.2005 [156] (further - the Convention of 2005). In the given Convention the definition of a human trafic containing in the Palermsky report completely is reflected. The convention of 2005 is directed on the human trafic prevention, protection of victims and criminal prosecution of those who is engaged in a human trafic. It covers all forms of a human trafic and all victims of such trade, and also all forms of operation. The given Convention provides also measures on assistance to partner communications with a civil society and the international cooperation. Now the Convention of 2005 is ratified by 47 European countries.

Among other regional certificates it is important to note the Cooperation agreement of the state-participants CIS in struggle against a human trafic, bodies and fabrics of the person from 25.11.2005 [157]. Among its features and innovations it is necessary to note insignificant change of the maintenance of concept of operation as the human trafic purposes. So, instead of such kind of operation as extraction of the bodies, specified in the Palermsky report, in the considered Agreement contains a new kind of operation - extraction of bodies and fabrics of the person with a view of their sale. As a whole the Agreement contains a number of the positions directed on the organisation of interaction of law enforcement bodies of the state-participants CIS in sphere of struggle against a human trafic, bodies and fabrics of the person which practical importance cannot be underestimated.

Also on 30th plenary session of Inter-parliamentary Assembly of the state-participants CIS «the Modelling law has been passed About human trafic counteraction» from 03.04.2008 [158]. The given law has recommendatory character, however can be considered by working out of the national legislation in the given sphere.

In 2011 the European Union (further - EU) has accepted the Instruction 21011/36/EU the European parliament and council from 05.04.2011 [159] on prevention and struggle against a human trafic and protection of its victims, defining concept of a human trafic and establishing for member states standards of measures of struggle against a human trafic. Standards of the Instruction of EU demand from member states to establish the criminal liability for all forms of a human trafic and to appoint considerable punishments for the crimes connected with a human trafic.

According to the World report published UNP the United Nations, a human trafic with a view of withdrawal of bodies in 2010 has constituted 0,2 percent from the general number of the revealed cases [160], and for 2014 such form of operation constitutes 0,3 percent [161].

Let's notice, that under the given corpus delicti, criminal cases are initiated extremely seldom, nevertheless, such practice takes place.

In 2001-2004 of local brokers have enlisted Moldavians who have been taken out to capital of Turkey - Istanbul. There in special clinic it had been removed kidneys. In these cases there were some proceedings against local brokers, including the several recruiters, which steels victims of a human trafic. Ten Moldavian citizens have been convicted that they have been involved in criminal activity. According to the international warrant the prospective head of a network has been arrested in Ukraine, and then ekstradirovan to the native Israel [162].

In 2008 the police of Kosovo has begun investigation concerning criminal group which carried out a human trafic for the purpose of extraction of bodies with clinic Medicus use in Prishtina, Kosovo. Among addressees of bodies there were citizens of the different countries, including Canada, Germany, Israel, Poland and the United States. People who lived in adverse social conditions appeared Victims-donors. So, it has been established, that to Kosovo took out citizens of Belarus, Israel, Kazakhstan, Moldova, Turkey, Russia and Ukraine, promising to pay to 14 500 euros in exchange for one of kidneys. Addressees of bodies should pay from 80 000 to 100 000 euros [163]. On the given case five citizens of Kosovo to whom it has been accused in fulfilment of such crimes, as a human trafic for the purpose of extraction of human bodies, the organised crime, abusing official powers, abuse of authority and illegal realisation of medical activity were convicted. In April, 2013 convicted have been recognised by guilty of a human trafic, the owner of clinic also has been recognised by guilty of illegal realisation of medical aid. Other charges, such as abusing the official position, drawing of heavy physical injuries, swindle and forging of documents, have been dismissed. Sentences included imprisonment for the term up to eight years and the penalty at a rate of 10 000 euros. Other two convicted have been justified. However, after their initial arrest in 2008 the main broker (Israeli) and the Turkish surgeon have left Kosovo, and in 2010 they became a subject of the international inquiry of the Interpol. The surgeon later in 2011 has been arrested in Turkey, but let to bail in Istanbul and remains in the Interpol list. The Israeli broker has been definitively arrested in Israel in 2012 on the basis of the warrant of the Interpol and convicted of fulfilment of separate certificates of trade by bodies.

In 2010 law enforcement bodies of Byelorussia had been detained the criminal group which is engaged in a human trafic for the purpose of extraction of bodies in territory of Ukraine, Belarus, Russia. Criminal case has been initiated in the beginning of 2011 to signs of a human trafic with a view of withdrawal at the victim of bodies for transplantation. The given criminal group during the period with 2008 for 2010 was engaged in selection and recruitment of donors with a view of withdrawal of bodies for transplantation. Law enforcement bodies of the Ministry of Internal Affairs of Belarus were revealed by ten victims of dealers human bodies, namely - kidneys. Among them there were young men without problems with health, but socially uncomfortable which wished to receive monetary compensation from the spent operations. Under statements of field investigators recruiters so convincingly influenced mentality of victims, that those actually voluntary agreed on a fence of bodies, otherwise moving of donors through

Border it would be practically impossible [164].

In 2009 the Council of Europe and the United Nations had been carried out joint research on a theme «Trade in bodies, fabrics and cages and a human trafic with a view of extraction of bodies». As research affirms, that there are no exact data on a parity of number of cases of trade in bodies of the person to number of cases of a human trafic with a view of extraction of bodies. Also the conclusion, that the taken bodies usually do not come under to long storage in this connection the considerable part from the general number of cases is necessary on a human trafic with a view of extraction of bodies [165] has been drawn.

One of main objectives of this joint research consisted in establishing distinction between «trade in bodies, fabrics and cages» and «a human trafic for the purpose of withdrawal of bodies». According to definition of the Palermsky report, the human trafic for the purpose of extraction of bodies, as well as any other forms of operation connected with a human trafic, demands a combination of three elements (action, means and the purpose). The Human trafic for the purpose of extraction of bodies is necessary for distinguishing from trade in human bodies which not necessarily demands a combination of these three elements [166].

On 68 sessions of HECTARES of the United Nations from 02.08.2013 on a theme «Encouragement and protection of human rights: questions of human rights, including alternative approaches in assistance business» have been presented effective realisation of human rights and fundamental freedoms the report of the Special lecturer of a human trafic, especially by women and children. In the given report the following position is stated: distinction between illegal trade by bodies and a human trafic with a view of withdrawal of bodies «is substantially semantic as bodies do not move also them do not trade irrespective of their source. Instead move a source or have it so that to make transplantation possible. Accordingly, more precisely to characterise the above described practice as« a human trafic with a view of withdrawal of bodies »[167].

The special lecturer also approves, that «operation of the people forced, owing to necessity or on compulsion, to give bodies for transplantation to people in own countries or to foreigners, distinction carrying out directly falls under international legal definition of a human trafic» [168], and between trade in bodies and a human trafic with a view of withdrawal of bodies substantially unfairly.

In 2014 at the twenty third session the Commission on the prevention of criminality and criminal justice has presented the Resolution 23/2 from 16.05.2014 in which has noticed, that «illegal circulation of bodies of the person and a human trafic for the purpose of extraction of bodies where they were made, represent one of forms of operation and a crime against human advantage of victims» [169].

In the Resolution 25/1 from 2016 the Commission on the prevention of criminality and criminal justice recognising, that «illegal circulation of bodies of the person and a human trafic for the purpose of extraction of bodies have some distinctions, both these crimes are connected with deficiency of bodies of the person used for transplantology that speaks about necessity of acceptance of effectual measures under the prevention of both crimes and struggle against them» [170].

Also in the resolution of HECTARES of the United Nations 71/322 from 08.09.2017 «Strengthening and encouragement of effectual measures and the international cooperation in sphere of a donor service and transplantation of bodies on purpose to interfere and counteract a human trafic for withdrawal of bodies and to trade in human bodies» [171] (further - the resolution of HECTARES of the United Nations 71/322 from 08.09.2017) admits, that between such crimes as trade in human bodies and a human trafic with a view of extraction of bodies, there are distinctions.

The analysed documents allow to draw a conclusion, that in international legal certificates there is no clearness on the given question, there is no accurate adjusted position that complicates progress achievement in efforts on struggle against illegal circulation of human bodies.

Despite similarity between illegal circulation of human bodies and a human trafic for the purpose of extraction of bodies which is expressed in a number of the reasons: shortage of human bodies for transplantation carrying out, unequal access to medical services, the bad economic and other conditions, putting people in vulnerable position, we consider, that in the international law doctrine accurate differentiation of these two criminal actions for qualification of a turn of human bodies as crimes when the human body and its use are the basic subject of criminal action irrespective of, whether this body has been removed at the live or died donor is necessary. The human trafic for the purpose of extraction of bodies should be considered as a crime when operation of separate persons constitutes the objective party, that is the crime can be made, only if human bodies are removed at live donors in one of the cases mentioned in operating international legal certificates.

The problem of protection of the rights and legitimate interests of children adopted by foreign subjects, has interstate character. With a view of the prevention of the crimes connected with illegal circulation of human bodies, we consider expedient modification of operating international legal certificates in the form of an additional qualifying sign of a crime «illegal adoption for the purpose of the subsequent sale of their bodies».

Thus, the international legal above international legal and recommendatory certificates in the field of a human trafic allow to draw a conclusion that the given certificates are the effective tool in sphere of counteraction of a human trafic in its forms including for the purpose of extraction of human bodies. The given international legal and recommendatory certificates consider all important areas and contain the basic norms of counteraction to illegal circulation of human bodies. The operating Convention of 2015 brings the important contribution to filling of the legal base concerning a human trafic with a view of extraction of bodies.

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A source: Kozlova Anastas Alekseevna. INTERNATIONAL LEGAL BASES of COOPERATION of the STATES In SPHERE of COUNTERACTION to ILLEGAL CIRCULATION of HUMAN BODIES. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2018

More on topic §3. International legal problems of differentiation of acts "human trafic" and «illegal circulation of human bodies»:

  1. §1. Qualification of acts as illegal circulation of human bodies on international and to the national law: rather-legal analysis
  2. Chapter 2. International legal mechanisms of counteraction to illegal circulation of human bodies and problems implementatsii international legal norms in the national legislation
  3. §4. Implementatsija international legal norms on counteraction to illegal circulation of human bodies in the interstate legislation
  4. §3. International legal bases of cooperation of the states on protection of victims of illegal circulation of human bodies
  5. Chapter 1. Illegal circulation of human bodies as illegal act on international and to the national law
  6. §1. The basic directions of the international cooperation under the prevention of crimes in sphere of illegal circulation of human bodies
  7. 2.2. Activity of the international organisations under the prevention of illegal circulation of bodies of a human body
  8. Kozlova Anastas Alekseevna. INTERNATIONAL LEGAL BASES of COOPERATION of the STATES In SPHERE of COUNTERACTION to ILLEGAL CIRCULATION of HUMAN BODIES. The dissertation on competition of a scientific degree of the master of laws. Moscow -, 2018 2018
  9. §2. Illegal withdrawal and use of human bodies as the basic problem of international legal regulation in the field of transplantology
  10. 2.1.3. International agreements in the field of counteraction of the states to illegal withdrawal and trade in bodies and fabrics of a human body
  11. 2.1. The international conventional regulation of transplantation for the purpose of bar of claim by lapse of time of illegal withdrawal and a turn of bodies of a human body
  12. Chapter 3. Realisation of international legal standards in the field of transplantology in the legislation of the Russian Federation and a problem of suppression of an illegal turn of bodies of a human body
  13. 2.3. A role of the international non-governmental organisations in sphere of prevention of an illegal turn of bodies of a human body